This speech was delivered on 19 June 2013 in the NSW Upper House. You can read the full debate online here.


Mr DAVID SHOEBRIDGE [10.17 a.m.]: The Greens support this amendment. In fact, it is amendment No. 9 on our sheet as circulated. It is an important amendment, because under clause 47 (1) (d) the bill allows for the termination of employment because of physical or mental incapacity where the employee is unable to perform the duties of the role assigned to the employee. The bill fails to impose any obligations on the employer—the Government—to make reasonable adjustments or to seek to reassign the employee to a suitable role. The concept of suitable employment is crucial, particularly if a public sector employee has a work-related injury or other incapacity.

Any decent employer would readily accept the obligation to make reasonable adjustments. I would hope that the Government, as a model employer in New South Wales, would show respect to people who are suffering from an injury and to people who, through no fault of their own, are suffering some type of incapacity. I would hope that the Government would be willing to make reasonable adjustments—not unreasonable adjustments—and find suitable employment for people who clearly are willing and able to serve the public in New South Wales.

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [10.19 a.m.]: The Government does not support the Labor Party’s amendment, which seeks to limit the ground for termination when an employee is not able to perform the duties because of physical or mental incapacity. The wording in the amendment already is dealt with in clause 56 of the bill, which is the same as existing section 25 of the Public Sector Employment and Management Act. The matters of detail contained in the proposed amendment will be dealt with in regulations and the commissioner’s rules.


Mr DAVID SHOEBRIDGE [10.20 a.m.]: I move The Greens amendment No. 10 on sheet C2013-084A:

      No. 10 Page 27, clause 47, line 9. Omit all words on that line.

This amendment effectively would delete from clause 47 of the bill subclause (k), which allows for termination on any other ground prescribed by the regulations. It is a plenary power that will be granted to the Government if in the future it seeks other bases upon which it wants to be able to terminate employment. It expands the termination field simply by issuing regulations. Already there is a very detailed list in clause 47 of bases for termination of employment.

For The Greens it is unacceptable that the Government would have unlimited expansion of the basis upon which it can terminate the employment of public sector employees by simply issuing regulations. This statute should be getting the balance right between security of employment and decent employment conditions and an acceptable level of managerial prerogative and performance oversight of public servants. Simply allowing an unlimited expansion of the reasons upon which termination can happen by regulations in the view of The Greens clearly puts the balance far too heavily in favour of management prerogative and reduces the security of employment that is necessary for an independent public service. The Greens commend the amendment to the Committee.


The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [10.22 a.m.]: The Opposition supports the amendment. We do not think that the grounds for termination should be able to be widened by regulation. If the Government has further ideas about what other bases should support a termination it should put them in the primary statute—in other words, in the bill. If the Government cannot think of any other circumstances at present it can always introduce amending legislation rather than rely upon the blank cheque approach afforded by this wide regulation-making power.

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [10.23 a.m.]: The Government does not support this amendment, which would remove the ability of the Government to prescribe other grounds for termination in the regulations.

Dr JOHN KAYE [10.23 a.m.]: I thank the Minister who is leading for the Government for his contribution to the debate. He has exactly outlined why this amendment is so important. Under clause 47 subclauses (a) to (j) the Government already has a detailed range of causes for which to dismiss an employee, such as failing to meet a condition of engagement; lacking or having lost an essential qualification; performance has been determined to be unsatisfactory; is unable to perform duties because of physical and mental incapacity, which we discussed earlier; is retired on medical grounds; has refused to perform duties; abandoned his or her employment; a finding of misconduct; has been convicted of a serious offence; or is declared under the regulations and employment rules to be excess to requirements. That is a very comprehensive list of causes for dismissal. Before we hand over any further powers to the Government we would really need to ask the Government what else there could be. What other grounds could there be?

Once the Government goes beyond those grounds it traverses into grounds that are very dangerous and that could have an underlying political intent. The challenge is put to the Government. If the Government opposes the deletion of clause 47 (1) (k), which states “on any other ground prescribed by the regulations”, the Government must tell the Committee what else it has in mind; otherwise, it would be open to anybody reading this debate to assume that the Government has malign intent by retaining clause 47 (1) (k) of the bill, which has the wording “any other ground prescribed by the regulations”.

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [10.25 a.m.]: I do not need to remind members, surely, that any regulation is disallowable. There is an opportunity for that additional level of transparency, despite the fears expressed by members opposite. The matters will be in the regulations and therefore there is a method by which they can be addressed.